Pleading the Sixth: A new study shows that New Hampshire’s indigent defense system lacks adequate funding and structure to ensure that each indigent defendant receives constitutionally required effective assistance of counsel. The New Hampshire Judicial Council, the entity responsible for administering and overseeing the state’s indigent defense system, lacks independence and lacks adequate funding and resources. The effect, for years the Judicial Council has only been able to maintain a stagnant system and has not been able to adequately oversee and supervise the entities and attorneys providing indigent defense services. While reforms are needed, the state has already taken action to make some improvements
This evaluation was supported by 6AC’s Law Student Network.
Although attorneys in New Hampshire do not suffer from a lack of passion and dedication for representing indigent defendants, New Hampshire’s indigent defense system has been hindered from growing and evolving for years due to, among other things, a lack of independence, inadequate funding, and flat-fee contracting. The result, the people providing this essential service are unable to do so effectively and the indigent clients served are potentially not receiving their constitutional right to counsel.
A new Sixth Amendment Center report, The Right to Counsel in New Hampshire, released October 25, 2022, explains the many issues preventing New Hampshire from fulfilling its constitutional responsibility of providing effective assistance of counsel to each and every defendant. The study was conducted at the request of the New Hampshire Judicial Council, the state-level body responsible for indigent defense administration and oversight, and funding for the study was provided by the U.S. Department of Justice, Bureau of Justice Assistance.
The basics of New Hampshire’s indigent defense system
The entire New Hampshire indigent defense system is provided and funded by the state through, and overseen by, the New Hampshire Judicial Council (judicial council). The judicial council is an executive branch state agency composed of 23 members, including prosecutors, judges, and providers of indigent defense services. To avoid some of the conflicts in the judicial council’s makeup, the judicial council has an indigent defense subcommittee which is a voluntarily created body responsible for making most of the decisions about indigent defense services in the state. For the day to day work, the judicial council has an executive director and two staff members; the judicial council has had a total of three staff for at least the last 40 years. All of the funding for indigent defense services comes to the judicial council through a general fund appropriation from the state legislature.
The judicial council statutorily must and does use a three-part system of private attorneys to provide representation in indigent criminal defense cases and juvenile delinquency cases across the state: (1) a two-year contract with the non-profit New Hampshire Public Defender (NHPD) law firm to serve as the state’s public defender program; (2) a series of one-year contracts with individual private attorneys or firms, referred to as “contract counsel,” to be available for assignment (in non-homicide cases) when the NHPD has a conflict or is otherwise unavailable; and (3) case-by-case appointments of individual private attorneys, referred to as “assigned counsel,” who accept assignments in cases when the NHPD is unavailable and there is no available contract counsel. The judicial council also has the authority to contract with an “alternate public defender program” to provide indigent representation when the primary public defender program has a conflict or is otherwise unavailable, but the judicial council has never done so.
The NHPD has been the contract public defender program in New Hampshire since 1986 and thereby is the primary provider of representation in adult criminal trial level and juvenile delinquency cases, among other case types. As a non-profit corporation, the NHPD is overseen by a board of directors and was formed for the sole purpose of being appointed to represent indigent New Hampshire defendants. Beyond that, the NHPD is led by an executive director who is responsible for supervising the entire program. The NHPD has 10 branch offices providing representation in all trial courts in the state; each branch office is staffed with attorneys and support staff (including investigators, social workers and other support staff). NHPD also has and uses its authority to subcontract with private attorneys to handle some of its caseload; these attorneys are paid a flat fee per case. An NHPD attorney must handle any indigent defense representation case unless doing so would conflict with the New Hampshire Rules of Professional Conduct, or when caseload limits under the contract with the judicial council have been reached; in either of these two circumstances, contract counsel is the secondary provider (in non-homicide cases).
Each fiscal year, the judicial council contracts with some number of private attorneys to be contract counsel when the NHPD is unavailable to accept an appointment to represent an indigent defendant. Each contract specifies in what courts and for what types of cases a contract counsel agrees to providing representation. Once appointed to a case, contract lawyers are paid a flat fee depending on the type of case. Nothing prohibits contract counsel from also serving as NHPD subcontractors, serving as assigned counsel, taking appointed cases in other jurisdictions, and taking on retained cases. When the NHPD is unavailable and there is no contract counsel to be appointed to a case, assigned counsel is the tertiary provider. The judicial council selects private attorneys to serve as assigned counsel appointed to represent indigent defendants. Assigned counsel are paid hourly, though subject to a maximum fee cap that depends on the case type. Nothing prohibits assigned counsel from also serving as NHPD subcontractors, serving as contract counsel, taking appointed cases in other jurisdictions, and taking on retained cases. As the last provider of representation for indigent defendants, it can often be hard for the judicial council to find a private attorney willing to serve as assigned counsel.
New Hampshire’s indigent defense system lacks adequate funding and structure to ensure each indigent defendant receives effective assistance of counsel
While in theory, New Hampshire’s indigent defense system seems well structured, the evaluation exposed numerous structural deficiencies often setting up appointed attorneys to be unable to provide effective assistance of counsel.
First, the indigent defense system lacks independence. The judicial council has built in conflicts of interest in its membership and the voluntarily created indigent defense subcommittee does not solve those built-in issues. Additionally, the judicial council and NHPD are reliant on each other – the judicial council has not had another option for the public defender contract since 1986 and the NHPD relies on the judicial council contract to continue to exist. Accordingly, each entity is concerned about keeping the other happy instead of acting solely on behalf of the indigent defendants of New Hampshire. Similarly, contract attorneys and assigned counsel attorneys are reliant on the judicial council for receiving appointments to indigent defendants’ cases.
The lack of independence results in numerous adverse consequences, and at the end of the day, the indigent clients are the most impacted. For example, instead of requesting the additional funding necessary for its full operation (and risk losing the public defender contract), the NHPD cuts corners by allowing attorney caseloads and workloads to be extremely high, even above what is allowed in the contract. For an indigent defendant, that means their NHPD attorney is constantly choosing between working on their case verses all of the other cases to which the attorney is assigned. As one staff attorney put it, when the NHPD allows its attorneys to carry excessive caseloads, “the New Hampshire Public Defender program puts the contract first, not the client.”
Second, the indigent defense system lacks adequate funding. While in theory the judicial council has a lot of statutory authority regarding oversight of the indigent defense system, with only three staff, the judicial council has never been in a position to exercise that authority to properly oversee the indigent defense system that it has in place. Furthermore, inadequately funding the entire system means many of the attorneys providing indigent representation services in New Hampshire are underpaid, resulting in attorneys leaving the system and/or attorneys having financial conflicts of interest as they provide representation. For an indigent defendant, this means they are potentially not receiving effective assistance of counsel and the judicial council is not in a position to know that is the case or do anything about it.
Third, the indigent defense system is structured in such a way that there are inequities among the types of providers available, which means that the effectiveness of the representation that an indigent defendant receives may depend on whether they are represented by an NHPD staff attorney, NHPD subcontractor, contract counsel, or assigned counsel. For example, NHPD staff attorneys are paid an annual salary, receive employment benefits, and do not have to pay for their own overhead expenses. For NHPD staff attorneys, their sole focus during their working hours can be on their appointed cases (though excessive caseloads and workloads make even this difficult). On the other hand, subcontractors, contract counsel, and assigned counsel all have limits set on the amount they can be paid for representing an indigent client; these fee limitations create financial conflicts of interest where the attorney is often faced with choosing between making a living and doing what is best for their appointed client. These financial arrangements incentivize attorneys to do the bare minimum number of hours of work necessary to dispose of each assigned case. For an indigent defendant, this means attorneys cut corners by failing to review discovery, investigate the case, etc. As one attorney explains: “If you go to trial, in most cases you will lose as a business decision.” Finally, the indigent defense system’s lack of structural safeguards and inadequate funding allow for the possibility of both actual and constructive denial of the right to effective assistance of counsel to at least some indigent defendants. Because of the way counsel is assigned in New Hampshire (first the NHPD, then contract counsel, then assigned counsel), it can sometimes take days or even weeks for an individual defendant to be assigned an individual attorney to represent them. Often times, this assignment occurs sometime after the defendant’s arraignment, meaning the defendant has had an actual denial of counsel during two critical stages, the arraignment and some part of the pretrial period between arraignment and trial, as required by U.S. Supreme Court case law. Even once a defendant is appointed an individual attorney, that attorney often works under systemic conflicts of interest that impede the attorney’s ability to provide effective assistance of counsel. As noted above, NHPD attorneys reported they are often forced to cut corners in the representation they provide due to excessive caseloads and workloads. And for contract counsel and assigned counsel, the payment scheme incentivizes attorneys to do as little work as possible on each appointed case. Ultimately, it is each indigent defendant that is not receiving their constitutional right to effective assistance of counsel.
Moving forward in New Hampshire
Based on these findings, the report recommends the state of New Hampshire make certain changes to ensure that the state is meeting its constitutional obligation to provide effective assistance of counsel.
First, regarding funding, the report recommends that New Hampshire statutorily ban the use of fixed fee compensation methods that create financial conflicts of interest and recommends that New Hampshire adequately fund the entire indigent defense system. Especially regarding the non-NHPD staff attorneys providing representation, attorneys must be paid a reasonable hourly rate in addition to actual overhead and expenses – a change that will likely lead to more attorneys willing to provide this essential service. More broadly, the entire indigent defense system needs to be adequately funded, starting with adequately funding and increasing the staff for the judicial council. The judicial council needs enough resources so it can actually perform its statutory duty of overseeing the state’s indigent defense system. If the judicial council has the resources to do this, the judicial council will be in a better position to collect data, know the stress points of the system, and report on that to the policymakers of New Hampshire. To that end, New Hampshire needs to appropriate state funding so the judicial council can have at least 14 staff positions and additional administrative support.
Second, regarding structure, New Hampshire should statutorily vest the authority to provide and oversee all indigent defense services in a state-level public defense commission and empower that commission to decide the most effective method of providing indigent defense services, and to promulgate and enforce statewide standards. As detailed in the report, the judicial council has numerous structural flaws making it lack independence and have divided loyalties. To correct this, New Hampshire must either reconfigure the existing judicial council or create an entirely new body with responsibility for the state’s indigent defense system. Whichever method is chosen, that body is in the best position to decide the appropriate method for providing effective representation to each indigent defendant. Furthermore, that body must be statutorily required to create and enforce binding standards applicable to all indigent defense system attorneys, especially standards related to attorney workload, to help ensure that each indigent defendant is in fact receiving effective assistance of counsel. Finally, the state level public defense commission should have an office of indigent defense services to carry out the day-to-day duties of the commission. This office would replace the judicial council staff, but should still be headed by an executive director and should have the same resource and funding increases that are noted above.
Although the state of New Hampshire must make some serious changes to meet its constitutional responsibility, the state has already started taking action to improve right to counsel services in advance of the report’s release. Specifically, on September 30, 2022, the New Hampshire Supreme Court ordered an increase in the hourly rates for assigned counsel attorneys from $100/hour to $125/hour in serious felonies (e.g., murder, serious sexual assault, etc.) and from $60/hour to $90/hour for all other felonies, misdemeanors, and juvenile delinquency cases.